January 16, 2013

In the midst of ever deepening economic woes, Greece is struggling with yet another crisis, this time of a humanitarian character. It is no secret that thousands of immigrants crossing into Greece mainly from Asia and Africa are held in appalling conditions in Greek detention centres. The UN Special Rapporteur on the human rights of migrants visited such centres just before the end of 2012 and faced a bleak situation (the relevant report is still forthcoming, but see the Reuters report here), while the Grand Chamber of the European Court of Human Rights found already in January 2011 that returning an asylum seeker to Greece under Dublin II violates Article 3 of the ECHR (see M.S.S. v Belgium and Greece, paras 344 seq, along with a description of the horrible conditions of detention facing immigrants and asylum seekers in Greece).

Today, media in Greece are reporting that the single-judge formation of the Criminal Court of First Instance of Igoumenitsa in northwestern Greece (Μονομελές Πλημμελειοδικείο Ηγουμενίτσας) has returned a remarkable decision (Nr 682/2012) in a prosecution brought against a number of immigrants awaiting expulsion who escaped a local detention centre. Relevant reports in the Greek press can be found here and here, and a redacted version of the rather short decision is published here (all three documents are in Greek).

The facts of the case are as follows: On the night of 30 September to 1 October 2012, fifteen immigrants detained in Thesprotia Police Headquarters (for having illegally entered Greece) wrestled the guards who had entered their cell to remove the garbage and escaped. They were later apprehended and charged with escape under the Greek Criminal Code (Article 173 para 1).

The judge found that the accused had indeed perpetrated the crime of escape. However, he went on to consider the conditions of their detention for a period of up to a month and a half. His description is blood-chilling: the accused had been held in a room with only one chemical toilet, no water, no cleaning or any other form of sanitation, and they all had to sleep in that same room, which did not allow them to even lie down on the floor (it was only 15 sq m, apprx 160 sq ft, and there were no beds). The accused had not been given access to showers or clothing, and many of them suffered from lice or even typhus and other communicable diseases, as a result of the fact that they had not been able to shower or change clothes for months. The accused were limited to the tiny cell 24 hours per day, with no provision for exercise, or even a breath of fresh air.

The judge found such conditions to be in clear violation of Article 3 of the ECHR (prohibition of torture or inhuman or degrading treatment or punishment), while he also went on to state that both the conditions and the duration of detention of the accused, who were awaiting expulsion but had not been charged with any crime, was such as to also violate Articles 3, 8 (right to respect for private and family life), and 13 ECHR (right to an effective remedy). This, the judge said, constituted a state of necessity which precluded the accused’s liability for the crime of escape. The conditions in which they were held put their life and health in extreme danger through no fault of their own; the only way for them to escape that danger was to escape from detention, an act for which they could not be held criminally liable. All fifteen accused were acquitted.

From a criminal law perspective, it is interesting to note that the judge allowed a defence of necessity that does not preclude the wrongfulness of the act, but one which only precludes liability for the wrongful act that has been committed (cf Articles 25 and 32 Greek Criminal Code). This means that the act (the escape) remains wrongful (and thus police could have sought to prevent the escape) but the perpetrators cannot be held criminally liable for trying to save their own lives and health.

More interestingly, the court effectively elevated ECHR protections to criminal law defences: it clearly found that conditions of detention in violation of Article 3 ECHR constitute a situation which puts the life or health of a detained person at risk, so that the latter will not be held criminally liable for escaping. This is to my knowledge novel. It is also in line with the European Court’s mantra that ‘the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’. The Greek judge, in his exceptional decision, seems to have given true effect to the rights guaranteed under the ECHR in a rather spectacular and unprecedented manner.